The key to surviving is having a strong social support network. Attorneys advise their clients not to talk about the case. But this isolates many physicians during a period for which they are unprepared for:

“It makes you feel like keeping it to yourself,” Dr. Sullivan said. “You just feel like you’re alone, and there’s not a lot of help out there for you.”

Having a strong social support network is essential when enduring litigation, said John-Henry Pfifferling, PhD, director of the Center for Professional Well-Being in Durham, N.C. “You need to talk about your anger or your symptoms of depression. There’s suffering, and then there’s suffering alone.”

And doctors who’ve been sued return to practice with considerably less joy than before. One even compares it to overcoming death:

“I was mentally prepared for a guilty verdict, but when they said it, it was like someone had sucked the soul out of my heart,” Dr. Melton said.

He went back to practicing medicine, but the joy of his work diminished. He slept more and had less energy for his church and the community projects he once enjoyed. Friends and relatives noticed he was quieter.

Surviving a lawsuit is akin to overcoming a death, said Dr. Firestone, the California psychiatrist and attorney. Doctors go through phases of denial, grief and acceptance. “[The impact] varies from individual from individual, but it could last a lifetime,” he said.

Worse, their future patients are affected. After a lawsuit, all the doctors interviewed in the piece practiced more cautiously, ordered more tests, and viewed their patients as adversaries:

“It destroys the collaborative nature of physicians and patients … It used to be a point of pride that I would take on the difficult patients … I am far less likely to take on those challenges.”

60% doctors will be sued by the time they reach age 55. Does that mean the majority of physicians in America are bad doctors? No, most have the patient’s best interest at heart, but unfortunately, made a mistake that resulted in patient harm.

But it’s apparent that dragging them through our unnecessarily adversarial liability system not only hurts them, but their future patients as well.

Both cannot be forgotten in this debate.

Kevin Pho is an internal medicine physician and on the Board of Contributors at USA Today. He is founder and editor of KevinMD.com, also on Facebook, Twitter, and LinkedIn.

How malpractice hurts doctors and their future patients 103 comments

“After a lawsuit, all the doctors interviewed in the piece practiced more cautiously, ordered more tests, and viewed their patients as adversaries”

In my experience, the effect is temporary. The solution is “compartmentalization.” You could go to work every day expecting to get sued, I suppose, but I don’t know how long you could stand it.

rezmed09

Temporary? The effect is attenuated but lasting. Although I have never been sued, I have been named and dropped on a couple of occasions.

I am forever changed, forever look at patients differently and certainly more adversarial. I now document every single non-adherence to therapy or my recommendations. I now spend way more time documenting what the patients are doing to hurt their health despite my recommendations. This has nothing to do with helping them, but protecting me in the event the patient has a problem and there are accusations later. Many patients are making mistakes with their health choices every day.

Lil A

As a patient, I never really looked at how a malpractice suit can affect the physician. I also have had the blessing to never feel like I need to sue a physician for something that they did wrong. This really shines light on how big of a deal that malpractice suits really are, and that doctors ARE human as well and have feelings.

However, I also want to shed some light as a patient. While I know that it is a protective measure, being adversarial can have its downsides. If a doctor is overly adversarial and he/she allows it to drip off him/her very plainly, then sometimes the patient will shut down and the lines of communication will become little to nothing. When this happens, it makes it difficult for both of them because the patient may feel that if they are open, they will end up being judged in the end and possibly condescendingly scorned for not being the “good patient”. I can also see it from the doctor’s end too, as he/she feels frustrated that the patient is disobeying his/her orders and that they are providing the best care possible just to end up scorned by the patient in the end or the patient does something very stupid that can negatively impact them.

I think that the problem lies both in the patient and the doctor, and that there isn’t just one person that we can point the finger at. I think we need to remember that we are all humans and we make mistakes and stupid decisions once in a while. Doctors need to avoid the curse of knowledge, as the patient does not know as much as you and relies on you to explain things to them in a way that they understand. It can seem like you are talking to a little child sometimes, but patience needs to not be tossed by the wayside. Patience can also be useful for the patient as well. Sometimes finding something that will relieve your symptoms may take time and some really hard work on your part. You can’t achieve good health by sitting around, wishing you could be healthy. You have to work for it. Second of all, even though doctors do know a lot, they are not all-knowing, so they should be allowed freedom to say “I know not” without being sued for it. This is also where doctors also must be willing and humble enough to say that they don’t know something. If the patient gets angry and goes elsewhere because you said you didn’t know what could bring them relief (that is, after you have assessed the treatment options available and whether or not they would benefit them), that is their loss. You have chosen to be honest, and that is better than being dishonest and leading them to believe that you can solve their problems, when you can’t. If you do lose a patient, don’t fret, as there will be new ones to come in. Just do your best and treat them the best you can.

The best doctors that I have had are those that explain to me my condition and will go through the x-rays or other diagnostic images. If I understand my condition more, then I will work with the physician or other healthcare professional to get better. However, if I don’t know my condition, then there is the risk that I will WebMD and Google it and end up with some very bad information and may apply things to myself that aren’t applicable to me. While it is up to the physician to provide information to the patient, it is also up to the patient to seek good information that they understand from their doctor as well.

Jackie

Lil A,

Doctors are always in such a hurry – or perhaps they think it’s too much trouble to explain – that they often neglect to explain the important test result/procedure.

I was scared to death one time when my oncologist ordered an ultrasound right after I a CT-scan. This was during the treatment of my local-regional recurrence of breast cancer. I was so sure that they’d found cancer spread to my right abdominal/chest area where I had been feeling some discomfort.

He did not go into details when I saw him for the result except telling me those tests ‘looked fine’. Eventually I found out that I had a harmless ‘hepatic hemangioma’ which had increased its size by 4mm. A hemangioma appears on CT-scan but not on ultrasound, and that’s why the ultrasound was ordered right away (this part I had to looked up the Internet to find out).

A good relationship takes time to build up. When I was feeling very ‘down’, my oncologist gave me a paper and pencil test and decided that I was ‘OK’. Yet my family doctor, whom I’d only saw a couple of times in the six years span (because I was under the oncolgist’s care), refered me to a counselor right away when I had an outburst in his office. (He knew nothing about my brain tumor history and was reluctant when I requested an MRI right after experiencing a vertigo.)

The ridiculous part was that ‘with a diagnosis’, my co-payment would be $40.00 while ‘without a diagnosis’, the out-of-pocket cost would be $100.00. I eventually persuaded the counselor to let me pay the lower amount, and my family doctor then gave me referrals for six sessions of counseling. Needless to say, I cancelled all those counseling sessions.

Lil A: That’s probably the best assessment of doctors and patients I’ve read. Of course we are all human, though some of us show it more readily than others! lol.

The problem with our mistakes, as doctors, is that they typically adversely affect people. That’s inexcusable, but somehow, depending on the situation of course, we have to excuse them to keep the system functional while ensuring that such mistakes don’t happen again.

Thanks for the comment.

Lil A

That is the cost sometimes that we pay with medicine. While it is inexcusable that the mistakes physicians make adversely affect people, neither the physician nor the patient should get hung up on the fact that the physician made a mistake. Both have to move on for the benefit of the patient and for the benefit of other patients. I’m not saying that the physician shouldn’t be remorseful and sorry for the mistake he/she made, sometimes it is better to take the apology and move on without seeking to destroy the physician’s life and/or take their license. If the physician takes this as a learning experience and doesn’t make the same mistake twice, then a bad thing is turned to a beneficial thing in the end.

I doubt that “I don;t know” would allow a suit to go forward. The best answer a doc can give when he doesn;t know is “I don;t know.” Then refer you to someone else or you choose on your own to find someone else. Litigation is more an issue when the doctor feels he is all knowing and refuses to say I don;t know but instead makes you go thru a ton of tests, etc indicating to you that he does know, he just needs to find the right tests.

Jackie

Are doctors still getting ‘bonus’ pay for limiting their referrals?

We are now with a stand-alone HMO solely affiliated with the hospital/clinic. Our doctors never have had problems sending us to specialists when necessary. We had suspected that our previous HMO, an insurance plan covering several different hospitals within a 100-mile radius, was setting quota or some sort of mechanism to disourage doctors from writing referrals.

Kristin

It’s worth noting that, of those doctors who are sued, even among doctors who lose their cases, a substantial portion did not commit malpractice.

Juries are unreliable sources of justice. (Don’t get me started on criminal trials and eyewitness testimony.)

Admonish away. Please. You are absolutely right – juries are not tasked with sleuthing the truth. The lawyers are not there to identify right or wrong. They are tasked with winning their case. Justice has very little to do with a lawsuit and its outcome.

The bottom line is he who argues best wins.

SarahW

Good intentions have little enough to do with negligence. Negligent error while driving resulting in harm or injury to your neighbor, even if you are giving your neighbor a ride as a favor is subject to a tort action – and should be – and certainly in any case where you are “helping” the neighbor out while charging him money for the favor.

Hurting a patient through improper practice, through an avoidable error (an unacceptable error) that not within the standard of care is little different with regard to intentions.

Limiting the damages in a medmal tort is a very small, and IMO cynical effort at reform. Medmal tort as it now stands is a game of “gotcha”, a punitive system meant to cow doctors into settling cases. Think about the numbers for a moment: most cases are dropped; cases brought to trial are won by docs ~90% of the time; in the 10% of cases won by plaintiffs there are some that do not in any way meet the definition of medmal, and in the 90% of cases lost by plaintiffs there are clear cases of medmal where the harmed individual will receive nothing.

The vagaries of a jury NOT of the doctors’ peers, and the perverse incentives for plaintiff’s attorneys that fails to prevent any case of whatever merit from being filed are the issues that demand reform. Limiting the top end of awards does nothing to treat the underlying disease, only one of the symptoms.

And one should point out that medmal reform is much more than just caps on damages. Though our friend Matt is a long-time reader who argues vehemently against medmal reform (unless I’ve mistaken this Matt for another). Besides caps, there is the recent legislation in Florida which could be looked at that has just improved the ability of Florida physicians to function with slightly more confidence that they might be treated fairly should they be slapped with a lawsuit in the future. The constant risk of a lawsuit is paralytic, regardless of the opinions of you who have either never been sued or had the threat of a suit or aren’t in medicine but feel the need to opine on the subject.

Greg

Also important is the chilling effect that a malpractice suit has on the doctor’s colleagues – call it the doctor’s lounge syndrome. Word spreads fast in a hospital or clinic about what happened to a particular doctor, in a “did you hear what happened to Rob?” type of gossip pattern. As a result, not only is the sued doctor more likely to order more tests and view their patients as adversaries, but the other docs in a practice or hospital that hear about the suit are going to practice more defensively.

In medicine, when I hear of a colleague getting sued, I don’t think, like many patients might imagine, that here is some idiot with a license to kill, and I’m glad he got what was coming for him. I think to myself, there but for the grace of God go I.

buzzkillersmith

No one cares one iota about the effects of the malpractice system on doctors. That’s how it has been and will be. My advice is that if you don’t want to be sued,you shouldn’t see patients.

Primary Care Internist

Kevin, I agree 100% but as we’ve pointed out so many times on this blog, the layperson has zero empathy for physicians.

I think it’s more useful, and more cathartic, to work towards true change. Since trial lawyers are a protected bunch thanks to Obama, Sebelius, and all the other lawyers high up who run healthcare, one place to start would be to root out our own bad apples. By that I mean we should make a more concerted efford to expose those who are hired gun expert witnesses, with the help of our state medical societies and state medical boards. These agencies should be more empowered to discipline those who give (or intend to give) specious testimony as a pattern in working with plaitiff’s lawyers.

Many many of us know who among us is prostituting themselves for $5000 a pop. I know of one case recently where a neurologist (ADULT NEUROLOGIST) in brooklyn gave written testimony that a CHILD suffered irreparable neurologic damage from lead toxicity. Even though the defendant’s expert was the chief of pediatric neurology at one of the nation’s leading academic hospitals, it was just cheaper to settle than go to trial. And the defendant doctor was an older immigrant pediatrician with a thick accent potentially testifying in front of a plaintiff-friendly bronx NY jury and notoriously corrupt judges in bed with their trial lawyer donors.

All these details aside, patients and the lay public just don’t care about a doctor’s feelings etc. After all, aren’t we all just a bunch of rich greedy entitled self-absorbed egomaniacs?

I only differ in the note that doctors who get sued did something wrong. I was involved in one lawsuit where I really did a very good job, just a patient died. The attorney dragged it out 3 1/2 years, I spent over a hundred hours at depositions, meetings, etc. In the end the plaintiffs attorney, who I am sure knew for months if not years that he could not try the case and have any chance of success dropped the case about 12 hours prior to my first day of a predicted 3 week court case for which I had blocked 3 weeks of patient time. Cost to the system, lots. Cost to me personally in $, lots. Benefit to the poor wife whose husband died of a rare complication of a common problem, pericarditis? None.

What a waste. Our system is just broken and the attorneys who sit on both sides of the isles in congress just refuse to fix it because the big winners in our current system are attorneys. Really everyone else is harmed.

Matt

Congress is not sitting on its hands. Congress has no power to do anything about state law actions, particularly when they involve Constitutional rights. Blaming Congress makes little sense. And how exactly did the plaintiff’s attorney in your case come out a big winner? Looks like he lost tens of thousands in costs, plus all the uncompensated time.

MassachusettsPCP

He was taking a gamble that eventually the doctor or his insurance company would settle. How late in the game he realized he would not likely win – and how much motivation he had to press it through to the court date – is the obvious question. The secondary question would be whether he pressed onward “in the hole” thousands of dollars, hoping the doctor or insurance company would cave in the start date of the trial for some kind of settlement to reline his losses. It has happened before.

Matt

That’s a poor gamble, as anyone who deals with insurers much can tell you. Heck, even physicians know how hard it is to squeeze a dollar out of an insurer.

imdoc

How was Congress able to overcome state law with the vaccine injury compensation program? Does this not provide protection to manufacturers from litigation in state court?

Instead of having different policies state-by-state, why not have different policies relationship-by-relationship?

Let’s say two different guidelines are established by the courts. In practice, it could be more than only two options, but for the sake of simplicity, let’s make two. So the courts establish Rulesets A and B. Ruleset A is heavily favored towards the plaintiff lawyer and they can easily sue for unlimited amounts with no repercussions for frivolous suits. Ruleset B is heavily favored towards the doctor with caps on non-economic damages, a fair Loser-Pays policy with the physician being compensated by the losing plaintiff lawyer for all costs and for each hour of his time wasted, perhaps even with the potential for punitive damages if the case is judged especially frivolous. Each physician and patient agree beforehand in writing at the initial visit (at least in non-emergent situations) which RuleSet has jurisdiction over their relationship. Doctors who are hungry for more patients will be more inclined to agree to A in order to invite more patients to his practice. Doctors who are lawsuit-shy will insist on B, even if it means a smaller patient base. Patients who want to retain easy access to to lawsuits against the doctor will only see doctors who agree to A. Patients who use their judgment to evaluate doctors and feel a trust for certain good doctors will agree to B. Everybody wins (except lawyers).

This would be an awesome solution because it again proves that giving people choices and having voluntary solutions to problems is always better than having coercive monopolies.

I often feel sad and frustrated to read these posts. I am a lawyer, although not a malpractice litigator. I know full well what it is like to go to battle, day in and day out. It is not for me. In any case, I hope we can move from the language of deficit to the language of possibility. Language of deficit feels to me to be about blaming the courts, lawyers, judges, juries, patients and experts. There seem to be no possibilitites, no future, in this.

Being sued has to be a nightmare of fear, worry, frustration, anger, and distraction. I’ve read studies that find that physicians who are involved in litigation are more likely to be sued again during the first two years of litigation.

One person above states that s/he was involved in litigation for 3.5 years before dismissal. What occurred before litigation? conversation with injured pary/family? If not, would that have made a difference? Was there a mediation, before or after litgation? It seems that expeditious attempts to speak to injured party/family, even if physician determines there was no error, gives everyone the opportunity to move quickly into communication, disclosure (when appropriate), answering questions, listening, learning, and, perhaps, healing (for physician and patient). The longer the wait without attempts at communication, the more likely anger,blame and mistrust will set in, making litigation almost a certainty.

Would love to hear the stories of physicians’ response to something going wrong when treating patients, whether error or not, without blame or acrimony. I have the utmost respect for physicians and health care providers. I’ve always had excellent health care. My personal experience with medical error: my son’s neurologist made a mistake when my son switched to generics. A serious mistake. My son asked him to talk to me, which the neurologist did. He never apologized, never admitted that he made a mistake. He said we just have to move forward. He treated me and my son like our qeustions and concerns were frivolous. No lawsuit followed, but tremendous mistrust and disappointment resulted. My son, of his own choosing, moved on to another neurologist. Such an opportunity for the neuroogist to strengthen the relationship with his patient, to be human, lost. My son has had a very hard time trusting physicians since.

Alan

As a practicing attorney (not civil litigation) who himself has been sued frivolously, I can relate to some of these stories–and I’m sympathetic. There are a few misconceptions that keep coming up relating to this topic. First, there is the notion that a finding of liability is a “guilty verdict.” This is just mistaken. Liability is simply civil culpability for having violated a duty of care–a standard. It’s just an allegation of professional negligence. The other large misconception is that it is a trial that is grueling. In reality, the vast majority of cases settle, and by the way, that’s why insurance companies exist. I’ve known trial lawyers who couldn’t qualify to be called trial specialsts because they lacked the requisite courtroom experience. Just a couple other points, not in any particular order. The idea of being sued may be particularly offensive and injurious to self-image to anyone who is perfectionistic enough to get through professional training. Know thyself. You just can’t take everything personally–that is one key. And all of the familiar social emotions such as guilt and shame come into play. In reality, of course, nobody is perfect, though, and the world is unfair. If you’re not acquainted with the legal industry, you’re more likely to let those social emotions and fear of personal failure take their toll. I’m not minimizing the importance of those emotions — went through them all myself. And the worst thing was, the so-called expert witness was someone I knew who had an axe to grind! The case was tossed out, but I learned much more than law school ever could have taught in the process. That was character building. In conclusion, I think the real focus should be on curtailing frivolous suits rather than condemning the malpractice system wholesale. As to the lawyer bashing–why blame the players and not the game? Instead of thinking of injury attorneys as a cabal of fat cats, maybe think of many of them as joyless and sometimes burned out former idealists trying to make an iffy living in the context of the systems we have. The us versus them thinking may be leading some of you astray, although it’s an understandable perspective. At least half of attorneys are themselves sued at some time in their career. Think about it!

Sure, we can set aside taking things personally, but the reality is TIME is stolen from us and in some cases, MONEY is stolen as well. Isn’t it normal to dislike that, regardless of whether we take it personally or not?

Furthermore, if we set aside the lawyer-bashing and focus on fixing a broken system, how do you propose we do that, bearing in mind that lawyers are recycling their ill-begotten loot into heavy lobbying to keep the system rigged in their favor.

It shouldn’t be about what the doctors want or what the lawyers want. It should be about what people want, which is why my proposal of individualized arrangements makes the most sense. (see my previous comment)

Enlighten me if you disagree. 🙂

Alan

The American poet Carl Sandberg once said that the only coin you have is time. It will be spent regardless, either by you or by someone else. Granted, many lawsuits are an inexcusable waste of both time and money. What a shame. But consider the alternative.

A free market solution may seem attractive, in theory, but there’s a catch, and it has something to do with the difference between tort law and contract law. Without geting into such matters, maybe ask a local lawyer friend whether a hold harmless agreement against prospective negligence is enforceable in any jurisdiction.

What evidence exists for the assertion that “lawyers are recycling their ill-begotten loot into heavy lobbying to keep the system rigged in their favor”? I would submit that many are too strapped repaying student loans to recycle more than soda bottles. Thanks for the comment. Cheers.

Thank you for keeping me accountable and asking for sources. From The Center for Responsive Politics which calls itself “the nation’s premier research group tracking money in U.S. politics and its effect on elections and public policy”

The following lists entities followed by their donation amount and the Dem/Rep split of where the money went.

#7 below is American Assn for Justice. I may not be correct, but I believe that this name is a euphemism for the Trial Laywers of America. No? Correct me if I’m wrong.

IVF-MD,
We can agree on the good reputation on CRP, and for argument’s sake, I’ll buy the numbers you’ve listed. But where is a logical argument you’re trying to make? Is the argument basically that trial lawyers have a lobby, and they support Democratic party candidates. A Democrat is in the White House. Therefore the trial lawyers lobby controls the White House? It would be no less logical, using the numbers above, to argue that Electricians control the White House, since the Brotherhood of Electrical Workers gives even more money to support Democratic candidates. Risible, correct? Even getting past the line of reasoning, what do national political figures have to do with what goes on in state legislatures?

For the most part, tort law is state law. It seems you would like to see a choice of law provision be put into a patient contract. Again, if you’re only friendly terms with any person with a law degree, the question would be whether such a clause would be enforceable absent a nexus with the chosen jurisdiction.

Please don’t take this amiss, but by using emotive terms like “ill begotten,” “stolen,” and “euphemism” as is trial lawyers is a term of disparagement, don’t you think you’ve already got a bit more emotional energy invested in seeing the legal industry in a jaundiced way? Goodness, let’s not take ourselves too seriously. I think you meant “ill-gotten” not “ill-begotten,” though as an IVF doc, begetting would be more about what it’s about! Ill-gotten, or ill-begotten, it’s just one opinion.

Alan,
A 100% hold-harmless agreement would be the far extreme example. I’m talking about something more moderate where for example, parties living in a region with harsher lawyer-favoritism-based laws (Dade county Florida?) could both agree to having their potential disputes under more favorable terms similar to some other fairer states. In the present, if they wanted that, they would have to move out of state (as many OB’s have done). You are correct, Alan, that in the current suboptimal system, there is no way for two parties to willingly agree to this in a binding way. Isn’t that what a lawyers job is theoretically supposed to be, to help people negotiate? Not to cause more conflict. 🙂
By the way, when you say “many lawsuits are an inexcusable waste of both time and money. What a shame. But consider the alternative.”, what exactly do you mean by “the alternative”?

Alan

IVF,

The intention was to write “Alternatives,” rather than “Alternative.” My bad. Some conceivable alternatives could include (1) no legal recourse whatever for medical errors–outright abolition of negligence as a basis upon recovery may be based [not going to happen], (2) a single-payer system such as is the case in many OECD countries whose populations live longer and healthier than those in the U.S., and, sadly, given the dark impulses of human nature, (3) lex talionis (or retributive justice–not good for a civil society), where people take the law into their own hands. Until our politicians are willing to lead an adult conversation about how to reform the system (see Marcia Angell for some respectable ideas), we’re not moving forward. Tweaks here and there in the present system are not going to work, because of vested interests on multiple sides. Certificates of merit filed in professional negligence cases are too easy to obtain IMO. In the near and long-term, I don’t see any of the alternatives as desirable or politically palatable. Do you see any other alternatives?

“Isn’t that what a lawyers job is theoretically supposed to be, to help people negotiate? Not to cause more conflict.” I am not qualified to speak for others in my profession as to their motivations and characteristics, but lawyers, likeother human critters, probably represent a cross section of the population. But since you ask this question, you have obviously not been through divorce court. 🙂

Finally, last time I checked, forum shopping was generally frowned upon.

When you talk about individualized arrangements, although I wouldn’t use that terminology, I think that is what disclosure, conversation, apology, explanation, answering questions, and reconnecting with patients is: individualized, depending on the situation. As I said, fixing a broken system begins wth physicians’ speaking to patients quickly after something goes wrong in a patient’s medical treatment. Perhaps te system isn’t brokken; we won’t know until ALL this information becomes part of the conversation, rather than only discussing litigation. We need to be talking about how physicians got to litigation.

With all due respect, Ms. Clark, you are incorrect when you mention “disclosure, conversation, apology, explanation, answering questions, and reconnecting”, as representing individualized ARRANGEMENTS. Those have nothing to do with the law. Those are just some good things that doctors do when communicating with patients. An example of an individualized arrangement would be doctors and patients signing arbitration agreements, with both sides stating clearly beforehand how disputes would be resolved. So, we could take it one step better and allow the individual parties to agree to things like judgment caps and “loser-pays” policies as they see fit instead of having it determined by virtue of what geographic borderline they live within. I hope I have made things clearer.

I used the phrase “individualized arrangements” to refer to legally-binding arrangements that are individualized for one particular physician and his patients.

The items you listed are just good things that a doctor does informally and as such, do not fall under the category or legal “arrangements”. It’s all good. We are not in disagreement because we’re talking about completely different things.

Alan: Thanks so much for mentioning that a verdict of liability is not equivalent to a “guilty” verdict, that a guilty verdict is rendered only in a criminal case. That is one of those misconceptions that I see often.

Jackie

As a ‘professional’ patient, I ‘loved’ all of my doctors. The only doctor I had ‘dumped’ was the family physician who refused to help me to get access to the ‘out-of-network’ neurosurgeon that I desperated needed for my brain tumor surgery. Actually, he’s the one that became ‘distant’ after the tumor was successfully removed (a 23-hour surgery by Dr. Charles Shih-Cheng Chiang, a Johns Hopkins grad.) and I had recovered. I eventually was ‘forced’ to switch to another doctor within the HMO network.

I first went to him when I was already having symptoms from the life-long brain tumor. My previous family doctor had told us that if we wanted to, he could refer me to a psychiatrist. Since we knew that I was not ‘crazy’, we switched to this ‘in-network’ doctor who I’d seen a couple of times when our family doctor wasn’t available.

I switched to him around Thanksgiving time. I think he was a little bit flattered that I’d switched to him after dropping the other doctor, who’s from a well-known physician family in the local area. But soon he grew tired of me because I was requesting referrals after referrals. Don’t blame me – he’s the one suggested me to ‘move’ when I first told him that I’d been suffering from allergy-like symptoms and severe headaches.

Fortunately a volunteer at the library where I worked as a reference librarian was a retired pathologist. She noticed my ‘dizziness’ one day and laid me down on the floor before telling me that ‘it’s a serious situation’. When the receptionist on the phone suggested to me “why not wait a while till the allergy season is over”, Dr. Pauline Growsky grabbed the phone and chewed her out: “Are you a doctor? Are you supposed to give medical advice?” She then adviced me to ‘begin’ with an Ear, Nose, Throat doctor who found eveything was fine. I eventually called my gynecologist and was told that I should be seeing a neurologist. (I think the ENT doctor also mentioned seeing a neurologist, but it did not sink in at the time.)

When I called my doctor’s office for the referral, the ‘receptionist’ asked me: “why do you need to see a neurologist?” I nearly went hysterical… Eventually I got a referral to a neurologist and had a CT-scan… I wasn’t ‘crazy’, I was not a hypochondriac, I was suffering from a life-long Central Neurocytoma in the right lateral ventricle that had grown to the size of 4 x 5 x 6.5 cm!

We got hold of the ‘out-of-network’ neurosurgeon (who happened to be an acquaintant through our local club)that’s recommended by the neurologist. But nobody, none of my doctors, none of the people (doctor friends in our church) we knew would help me. Finally, my supervisor – the the local public library director who’d had some legal experience – talked to the insurance company and got things done. She also found a ‘pro-bono’ lawyer from the capitol area who’d just received the ‘Texas Young Lawyer of the Year’ award. The surgery was eventually scheduled on June 20, 1990 – 8 months after I had experienced the huge headache that felt like my brain was spliting into two halves.

Eventually, because I had successfully completed rehabilitation and went back to work, the attorney told us that she would not pursue the case pro bono- “It’s not because you don’t have a case, we strongly advice you to seek …”

Both family doctors now practise in the big hospital where I’d had my brain surgery. The first family doctor seeked me out one time and chatted with me a little bit. The 2nd family doctor, who had never diagnosed anything, had never talked to me since our last conversation about getting me the neurosurgeon I needed.

Alan, I appreciate your ideas and I look forward to this thoughtful discussion. We have many ongoing topics so I’ll pick the one most relevant to me at present. As a reminder, the starting point is Kevin’s thesis of how “our current malpractice system hurts doctors and their future patients”. My thesis begins like this. From a moral perspective, people should have free choice. More specifically, from a moral perspective (not a strict legal perspective) two mentally competent parties should be allowed the freedom to enter into an agreement on their mutually agreed upon terms.

Would you agree or disagree? I’ll wait before going on.

Alan

IVF-MD, I appreciate hearing your ideas as well. Too few people are even engaged in thinking about the issues. An intelligent and constructive dialogue is welcome. If we are going to talk about moral perspectives, rather than legal ones, which framework is most akin to your thinking: Deontology, Consequentialism, or perhaps a Rawlsian theory of justice? There is no disagreement here with Kevin’s main thesis. But where to next?

For a robust articulation of libertarian views, one could scarcely do better than turn to the (early) works of Robert Nozick, who, in later life, backpedaled a bit. People are actually capable of more stupid and self-destructive behavior than you might imagine, legal decisions being no exception.

Freedom of contract, within reasonable limits, is a principle widely recognized within our system of jurisprudence. It’s not so much the freedom to choose per se, however, but the reality that many “choices” are or will be “chosen” for us. Who voluntarily chooses to be ill? Who knowingly and voluntarily chooses a life of poverty, ignorance, deformity, morbidity? You’re a doctor. Just consider what the science of epigenetics is now telling us. What happens in utero, or even a generation prior, can impact a person for the rest of his or her life.

Some viewpoints in this area that make sense here are those articulated by Thaler and Sunstein–libertarian paternalism. Thaler is the U.C. economist, and Sunstein is the lawyer. Should society pay for someone “chooses” to smoke themselves to a stroke? Should there be a market for bodily organs? In some countries, there certainly is. Should society pay the consequentces because a professional doesn’t do his or her job properly? In all, there are more questions than answers.

So here’s hoping you’ll indulge another question: Do you believe medical care a right or a privilege?

Haha. My first reaction is to say that for the sake of the audience out there who are not academicians, we should avoid using philosophical eponyms to represent ideas. However, the truth of the matter is that I, myself, know nothing of the names that you drop. The beauty of truth and falsehood is that it should remain true or false UNIVERSALLY, and should be verifiable no matter who is saying it.

Having said that, I’ll answer your question regarding right to healthcare. Yes, I believe people have the right to medical care (and food and shelter and pleasure and anything else they want or need). Everybody has a right to pursue their own self interests whether it be obtaining food to satisfy hunger or obtaining healing to satisfy illness. They are free to achieve these on their won OR engage others to help them in these pursuits through charitable appeal or negotiation or mutual cooperation. They have no moral right to obtain this help BY FORCE whether individually or as a mob.

If you believe that health care is a “right,” do you believe that implies that health care should be free? Or, like “food, shelter and pleasure,” is the right to health care contingent upon the ability of the patient/customer to pay for desired/needed services?

Alan

Rights and responsibilities are two sides of the same coin. Taking the position that the provision of medical care is a right–and I agree that it should be treated as such–then whose responsibility is it to provide such care, and as Paul Dorio inquires, at what cost? It can be argued that if you, the physician, take the patient and agree to be compensated for the patient’s care, then his or her care becomes part of your responsibility. Bear in mind, we are talking about the right to receive a professional standard level of care, since it would be unreasonable to suggest that a patient has the right only to subpar treatment. If a patient receives substandard care, or at least reasonably believes he has, then doesn’t this have to be sorted out involving the professional in charge? What are your thoughts on the implications of this line of reasoning?

The notion of medical care being provided under duress, by “FORCE,” as you say, strikes me as rather novel and curious. Are there examples where that has been the case?

As to the proposition about beauty and truth being universal, isn’t old Hippocrates himself credited with the saying: “Life is short, art long, opportunity fleeting, experience treacherous, judgment difficult.” Sounds about right.

Alan,
I asked “at what cost” should the right to health care be provided? What’s your take and from where should the funds come from?

And by the way, you said: “The provision of medical care is a right” – I would argue that such provision is not a right, but an action by interested individuals. If you were to ask whether individuals have a right to OBTAIN a standard level of health care – then I would agree with that. Typically, the discussion of right vs privilege as it relates to health care has to do with being able to obtain services, not provide them. (Pardon the clarification)

To answer yours:
1- We physicians accept responsibility for all patients under our charge. Obviously that is why we do what we do. But we do not expect to be providing universal FREE care. No, care is expected to be provided at a fair level of remuneration. Of course, “fair” is obviously out of our hands, but that’s another topic for debate/discussion. WHO pays, is the question. Currently, we do not have a barter system, whereby one party obtains services from another party in return for direct compensation. Weirdly, the compensation comes from a third party (insurers/government).
2- Certainly, if we agree that physicians accept the responsibility to care for their patients, then it’s a simple extension to say that care must be delivered at a certain standard, with substandard care subject to review and “discipline.” The problem with that line of reasoning, however, is WHO decides such care was substandard and WHAT reprisal/compensation is decided as a result. I bring up medical courts as a potential solution, as I’ve mentioned once before on this thread. Thanks.

The moral right to pursue healthcare encompasses acquiring it by charitable appeal (I need help. Will somebody please help me?) or negotiation (I will cut your hair for you if you help me) or mutual cooperation (I will contribute my labor towards helping you get medical help some day if you contribute your labor towards me getting medical help now).

The only immoral way is by FORCE. (Pay for my medical care or we will kidnap you and put you in a cage and if you resist, you will be shot).

I enjoy the cerebral nature of these discussions – especially the back and forth that you guys have been having on this “thread!” Although you obviously have gotten wayyyy off the topic of medmal (fine by me).

So –

IVF-MD: Who is forcing whom to pay for someone else’s medical care?

And what are you referring to with “the moral right to pursue healthcare?”

When I discuss the “right to health care” I usually refer to the oft-discussed perspective that health care as a right implies that everyone should be able to obtain care. The question of course, is at what cost does that right exist? Any and all costs? Basic level of cost? Premium care paid for by individuals?

(btw, the two separate words denote the delivery of care to individuals, whereas the word “healthcare” has come to denote the “system” of care delivery.)

As a victim of medical malpractice, I find the simple answer to reducing the number of malpractice events to be simple – stop the ‘thin blue line’ of doctors refusing to testify against other doctors when there is malpractice.
In my case there was evidence of ‘ghost surgery’, (in fact, referring to another situation the doctor happily reported in his biography (WORKING IN A VERY SMALL PLACE, Shelton, Mark) about allowing a resident to operate on a patient while the neurosurgeon was not only not in the OR he was not in the hospital. The patient died. Only then did the surgeon of record come into the hospital to commiserate with the resident.)
A defensive pre surg EMG, showed 44% injury to the facial nerve, an indication that chances of facial paralysis, from the operation to be done, was high, was ignored until after the surgery and paralysis of the face.
I was told “I promise you your face cannot be injured.” by the surgeon.
In 2 separate depositions he testified, “major and common complication.” On the stand he said “Unknown.” The Pa superior court called his testimony perjurious. “We have little difficulty in concluding that Dr. Jannetta’s testimony at deposition was different than, or inconsistent with, the testimony at trial.” Levy v Jannetta, CCP Allegheny County, GD 81-7689; appeal -J. A370017/92 Levy v Jannetta et al, No. 00150 Pittsburgh, 1992. settled, 1995
(This is a short synopsis. Other issues also present of negligence and malpractice. Nevertheless, doctors told us “we will not testify against him.”
Public citizen has said that 15% of recidivist doctors commit 85% of medical malpractice. Despite this the state and medical societies, as well as other doctors, refuse to come forward. Doctors have themselves to blame for a lot of the malpractice and lawsuits because of their refusal to clean out the bad apples.
My experience in the courts, my case took 14 years, forces me to conclude that we do need another way to handle this. My case was settled for very little, does not come near covering my lifetime medical expenses, (I am getting state assistance in fact – that is where you all end up paying instead of the physician who committed the malpractice,)Taken out of the courts and into a mediation process may make a difference
(By the way, within a month after the settlement, forced on me by my attorney, the doctor was nominated as Pa. Sec’t of health by Gov Tom Ridge.)

“Are patients eager to sue? Or are they reluctant, like other tort victims? Popular perceptions notwithstanding, the evidence is quite clear that while many patients are injured, few ever sue. At the highest level, one can compare the estimated number of medical injuries—more than one million per year—to the number of malpractice lawsuits filed nationwide—approximately 85,000 annually.7 With about ten times as many injuries as malpractice claims, the only conclusion possible is that injured patients rarely file.
lawsuits.” http://faculty.law.miami.edu/mcoombs/documents/Hyman_Silver.pdf (Please consider looking at article for the studies from Harvard Medical Practice Study among others.)

Carol,
There is a simple reason why most doctors are reticent (at the least) to testify against other doctors – there but for the grace of G-d go I, as in, if I testify, next time it could be me perhaps, g-d forbid!).

Perhaps if we had medical courts, as has been suggested by various contributors in the past, these issues would be eliminated. In other words, instead of a jury of “one’s peers,” i.e.laypeople who know little to nothing of the medicine involved in a particular case, an objective group of medically-educated personnel could review the cases, as happens on the state level when licenses are reviewed and disciplinary actions are decided. Appropriate actions could then be taken based on the decisions made by the medical court entity. Just a thought, but it might be a way to eliminate that (understandably?) glaring lack of willingness of doctors to testify against “their own.”

I agree that there must be another way, arbitration, mediation. I cannot agree with a medical court. The ‘peers’ would be peer of the doc and no one for the side of the patient.
There is no incentive for anyone to testify if only docs. or administrators. I am not sure what you mean by ‘medically educated”. A nurse told me, “I can’t testify, I would be fired.” Fear of retribution would still be there. A whistleblower mentality exists in medicine where those that blow the whistle are seen as the bad guys.
Politics and bureaucracy and money still would rule the day.
Dr. Jannetta was a major name in neurosurgery. Those afraid to testify in court would be just as afraid to testify in a ‘medical court’.
Even if you bussed in medically educated people from outside the area or the state – a cabdriver told me that Pittsburgh Presbyterian was the major employer of the area – no unbiased there, big name doc loses, Pittsburgh could also lose.
(By the way, I contacted the allegheny medical society, the state and the association of neurological surgeons. Not one of them cared or replied.. I wrote JAMA, when they reprinted a seminal study by Jannetta of the MVD (Jannetta Procedure). The article covered 20 years of history with MVD, Jannetta surgeon. IMy surgery was during that time. I was not included “all patients had follow-up; I was never called or mailed a survey. Somehow facial paralysis was not included as a ‘major and common compliocation’ or risk at all. JAMA replied they did not have room to include my comment nor would they do a retraction of the risks.
Doctors protect doctors, no matter what, no matter the cost to the patient. The need is for courage among the medical community and honesty and integrity. A hearing before a ‘medical board’ is not the answer. The willingness of the med community to name the recidivists and bad docs is what is necessary.
Carol
( http://apainedlife.blogspot.com/ )

Thanks Kathleen,
Let me give one more scenario where I did not sue but should have.
I was to have a trigeminal tractotomy, getting to the root of the 5th nerve thru the back of my neck.
I was given all the risks of having this done.
A 18 years later I was having terrible neck pain and it was exhausting to hold up my head. X-rays showed my neck was in a V form and falling down, so much so I was tld “You can be paralyzed just walking down the street.”
(In his office weeks later he told a resident, while I was in the room, “When you look at these x-rays you want to leave the room and vomit”.)
The surgery involved clamps in the front and back of the neck to hold it up (for the docs here c2 – c5, one was supposedly pulverized) and 12 screws (whihc remain today). The surgery was difficult, had to be stopped halfway thru, a mess, in the hospital for a month, 2 operations overall and rehab.
The problem resulted from whomever did the opening of the wound to get to the area needed. I assume it was a resident, as that is usual for them to open (in my knowledge base),
I did not sue. I felt that my surgeon did not have to tell me how they were going to go into my neck, after all in an appendectomy do they say “I will open the skin, then muscles, and so forth to get to the the organ? so why should they for this.
In retrospect, because the potential lifetime damage so great, they should have told me.
Part of the issues here may be the decision what to disclose and what not. That might be more of an issue than states vs federal rules.
Have guidelines for disclosure with all surgeons on the same page. They do not have to be from the state but from the ruling, as it were, society for the specialty.
(Also there have been studies showing if docs apologize (this may have been said earler in thread, if so I apologize,) less lawsuits.

I was going to respond to this one too, IVF-MD, but didn’t feel it necessary to rebut what is so obviously a mistaken thought. Who else sues but an injured patient? The lawyer? Un-injured patients? Obviously injured patients can get a lawyer or we wouldn’t even be discussing these issues.

Dr. Dorio, I appreciate your contributions to this discussion. If Kevin doesn’t mind, then we can sidetrack to the right to healthcare or medicalcare as an offshoot of our original discussion on malpractice.

As to your question of “Who is forcing whom to pay for someone else’s medical care?”, I realize it might not be as obvious as I originally thought. I will try and take you through the logic.
Mr. X goes to see Dr. Y. This doctor runs tests on Mr. X who agrees to all the tests, but DOES NOT PAY for them. For each test that is done, Dr. Y submits a money request to a group of people. These people process the request and send Dr. Y a check. This check can then be used to draw funds out of an account. I trust you follow this so far and would then ask a logical question of where does the money in this account come from? This goes to the heart of the matter. If the money was put into the account willingly, then I agree there is no force. But what if the money was taken from other people unwillingly, would you agree that there is force involved?

IVF-MD – It’s not that I didn’t follow, it’s just that it seems one could conclude your goal is to identify that our taxes (a la Medicare) are being taken from us unwillingly. It seems to me that, if taken to its logical conclusion, that you’d suggest the government stop taking Medicare taxes out of our salary. Medicare, of course, was not intended to become as big as it has gotten. FDR devised Medicare to be a temporary program, but obviously it has grown a life of its own and now basically controls all health care.

Having said that, despite the fact that Medicare taxes are “taken from people unwillingly,” what solution would you suggest? With the disparate incomes and socioeconomic states of the people in this country, it seems reasonable to me to subsidize those people who are unable to pay for their own care. The question is, how much subsidy do we consider? For nowadays we don’t subsidize, but actually completely pay for a large number of people – many of whom could readily pay if they were asked to do so. I think that we could begin to get into the issues that underly the existing Medicare program if we take that view…..(Means testing).

I am on ss disability and therefore medicare. Unable at the moment but maybe, before circumstances changed, able to ‘pass’ a means test reducing or stopping my medicare a number of years back, I wholeheartedly agree there should be a means test.
I recall years ago on a 60 minutes segment the issue being social security and the ultra rich. A few of those interviewed said ‘I do not need the social security but I happily take what they give to me,’ Some of the more socially aware said they would not take it if means tested and have no problem with that.
Greed has gotten in the way, pure and simple. Means testing would prolong the trusts that are medicare (and social security too).
My belief is that the time came a while back and means testing needs to implemented.

imdoc

Private pensions, like Medicare and SS are trust funds. I am curious to know if you think pensions should be needs tested as well. There are some people who are quite well off getting private pensions.
Many young earning individuals want to know the answers to these questions so they can gauge how ambitious they should be.

And why, imdoc, would I focus on private pensions for this discussion? They are fraught with their own issues – take GM’s pension issues for example. – But they are not similar to Medicare in that regard. You and I don’t pay into Medicare in the same way that a company pays into a pension for its employees. And obviously people know (I hope) that there isn’t an actual fund that has a balance for Medicare recipients. So, to answer: No, I don’t care if they means test private pensions to the degree that private companies are or should be responsible for their own finances. But I do think that perpetual pensions are or should be a thing of the past as they are not affordable, as I think GM figured out.

joe

So Carol it is “greed” to expect to be to receive social security/medicare a fund that everyone has paid into their whole lives? The government did not set up medicare/SS is a “means test” program. It was set up to help all seniors after they retire (and others) as long asthey contributed to the program. You think it is OK for the government to change the rules after one contributes into the program your whole working life? The reality is that both programs would be viable now if the government had placed the money earmarked for these programs into bonds as opposed to using the money as a giant slushfund to plug other deficits as opposed to addressing those deficits headon at the time. Carol the simple fact is those “wealthy” who don’t “need” those programs are the tiny minority of all retirees. The vast majority of people do need medicare and SS as the pension plans are dying (outside of public workers which all the rest of us taxpayers will end up paying for in the end to supplement packages we will never be close to receiving ourselves) and certainly 401k/403b’s have not done well over the last decade. Sorry I don’t believe in a social redistribution of money just because politicians didn’t do the right thing for the last 30-50 years. Any changes that come to medicare/ss should effect us all not “the other guy”. Examples of what should happen include these future monies being invested for SS/medicare not as a slushfund. Another example is increasing the retirement age. Possibly we need to look at increasing contributions by ALL WORKERS. Class warfare isn’t the answer. I have always found it curious when people spout “answers” that take money away from others but in a way to guarantee insulation of the same process from themselves. We all got into this mess as a group, we need to get out of it as a group.

The problem is we do have a problem now, whether misspent and misused, which I agree it was. We have to deal with what is, not what should have been.
Sadly rules are changed all the time after the fact. My friends’ company went bankrupt the insurance and pension she was promised went kaput. She now has to rely on her miedicare and social security.
As I said I would have gladly taken a means test when my circumstances were different a few years back. I have no problem with that.
I wrote to Senator Danforth many years ago when this issue was on his table. I told him we need to be checking on those who receive disability much more frequently to make sure those who receive are still disabled. The letter was ignored.
because trigeminal neuralgia is not in their list of designated disabilities it might be very hard for me if they did that but I do not excuse myself from it were they to finally do it. I emexpt myself from nothing.
The problem re class warfare and insulating is that the largest number of millionaires in the freshman congressional group. Most of these people (congress as a whole) do not remember or have never been where many of us, struggling to pay for our meds, food, etc.

Alan

Paul and IVF-MD,
There seems to be an implicit assumption that Medicare pays only for care. According to the IOM, medical errors cost $17 to $29 billion per year. A study underwritten by the Commonwealth Fund estimates that over 2/3 of the cost of those errors is shifted to payers–such as Medicare. So Medicare taxes are already paying the cost of a subsantial fraction of medical errors. Therefore, we’re not just talking about subsidizing the price of care with Medicare, but also picking up the tab for medical negligence. That being the case, it seems hospitals and other providers, on the whole, are not being adequately incentivized to reduce advoidable errors.

Here is where the idea of a health court sytem could come into play. Such an administrative system is worth considering, provided such system is designed to lower barriers to claiming and recovering damages, thereby incentivizing providers to use greater diligence in preventing avoidable medical errors.

I take exception to your equating “medical error” with “medical negligence.” Believe me, the two are vastly different. Hopefully you realize that “errors” happen everyday. While unsettling to the average reader, most errors do not result in significant, or probably even minor, patient harm.

And you may not realize that the current healthcare reform discussion has absolutely changed the situation from the standpoint that many “avoidable errors” are no longer being reimbursed by Medicare. I think you’ll agree that the ball game has therefore been changed in that regard. Whether it will improve or worsen health care remains to be seen.

Alan

Point taken. Didn’t mean to make a facile conflation of terms. The implicit meaning was that of significant error that contributed to negligence or at least an increase in costs. Of course, everyone makes errors everyday, though the comment was not referring to harmless or trivial errors. Would you agree then that medical error is a necessary but not sufficient condition for negligence?

I’ve glanced at your blog–and find much there simpatico. Now, the following is way off topic, and maybe something to follow up elsewhere. Are you familiar with the work of Nick Christakis, George Vaillant, and more recently Friedman and Martin’s “Longevity Project,” or even Gary Taubes’ work? All these works have caused to re-evaluate the current paradigm of health care delivery.

It is taken from others. Medical insurance is socialized medicine. I pay my premiums, you pay yours.
When I first developed the TN, I had numerous neurosurgs, tests, procedures, drugs (at that time my BC/BS paid my meds;and medicare kicked in about 2 years into it but my BC still paid as well.) My cost probably ran into the high 6 figures, if not 7. Those who were well paid for me. When I stopped having procedures, etc, my premiums paid for those who were ill. Each of us who paid the premiums to cover the other as well as ourselves (awareness on unaware not withstanding) willingly paid.

Alan,
I guess it’s probably a truism that an error has to occur for there to be negligence. But here’s something not everyone thinks about: not all negligence results in a lawsuit. Should any? Or could appropriate compensation and discipline suffice, after sufficient objective review? i’ll leave it open for now, though of course the idea can be filled out.

(And, no, I have not read the works you mentioned, but I will look them up. Thanks.)

BWF

In my first year of private practice I was named in a lawsuit dating back to a surgery I observed two years prior during training. Key word here is “observed.”

At the end of the day during training one of my co-residents said that one of our attendings (senior teaching physician) was starting a surgery in the OR. Being an eager-beaver student doctor, I walked over to the OR and went into the operating room and asked the physician if I could observe the case that had started about ten minutes previously. I watched the case on the television monitor and didn’t scrub in. I was listed as an “observer” in the chart. Again, being an eager beaver student doctor I offered to dictate the op note at the end of the case. I dictated the case and then ran down to the clinic to finish some other work. When I came back later to the OR I learned that the patient had gone into respiratory distress and was still being managed by anesthesia. He was transferred to the ICU and later unfortunately expired. I observed his care in the post-anesthesia care unit, but certainly didn’t have any role in managing the patient as both the attending and anesthesiologist were present and this was the attending’s private patient.

When I first got served I assumed that there must be some mistake as I didn’t even participate in the case. I never met the patient pre-operatively or had any role in his pre-operative or post-operative care. I just watched the case because I thought it was interesting and thought I could learn something. The plaintiff’s attorney named everyone he could find in the chart, including me. I assumed the case against me would be dropped promptly once the plaintiff’s attorney learned I was only a student doctor. Unfortunately not. Incredibly, he asserted that I, the student doctor, should have taken over from the attending surgeon and anesthesiologist in the PACU and saved the day. It took two depositions (with the associated multiple cancellations, multiple days off from work, cross-country trips back to my training hospital), three years, and almost $100k in legal fees (paid by the insuror) to get me dropped from the case. As the months and years dragged on, I became more and more despondent. I cannot fully explain my emotions. One, I was, in essence, being blamed for a patient’s death. That is devastating. Two, my training program had only provided $500k malpractice insurance. The case was for millions. I began to think me and my young family would go bankrupt if somehow this craziness kept up.

The day I heard the case was dropped was literally one of the happiest days of my life. Am I jaded towards the medicolegal system? Absolutely. Do I run up thousands of dollars in unnecessary tests to protect myself? Absolutely!

Dr. Dorio, thank you for being patient with my response. It’s tricky having an online discussion and I wished to first clarify whether or not you recognize the involuntary nature of MediCare. You clearly understand what I’m saying. I’ll go on and agree with you that:
1. It is desirable to help those who are unable to earn enough to pay for their own health care. However, assuming that you think the MediCare model is the best way, I’ll disagree. More specifically, I think that taking money by force (rather than solving this problem voluntarily) is a bad way of trying to achieve this. In fact, my argument is that not only does a force-based strategy fail to achieve its goal, the far-reaching unintended consequences cause greater harm to society than good – much greater.
2. MediCare is a prime example, as you pointed out, of how coercive measures start small and then metastasize bigger, never going away, never shrinking nor even just staying the same.
I also believe that your proposal of means testing, which I interpret to mean “having some sort of rules to withhold coverage from some people who are assumed able to pay for their own medical care” sounds good on the surface, but in the big picture, if we end up concluding that the involuntary nature of taxation and Medicare is a flawed model, then minor tweaking of a fundamentally flawed model is akin to rearranging deck chairs on the Titanic. In fact, Premise #2 above is a universal feature of any coercion-based attempt of solving social problems. A program that involves involuntary coercion always ends up growing bigger. It always has unintended sequelae that end up making things worse. Always is a strong word, but that is my argument. Assuming you disagree, perhaps we should begin with establishing the truthfulness/falsehood of this statement before going any further.

In fact, the most amazing example to strengthen your argument that “a program that involves involuntary coercion always ends up growing bigger” is income taxes! Income taxes, which didn’t exist in the 19th century, began around 1% for the highest income earners in the early 20th century. Of course, we all know what happened afterward — up, up and away! (oh, to see Forbes’ flat tax proposal come about!).

The reason why these “involuntary coercions,” as you put it, continue to grow larger is because once an entitlement, always an entitlement. I don’t necessarily think that means testing is the way to go for Medicare, just used it as a plausible alternative. The problem with the program is the massive (billions/year) abuse that occurs, which drives up costs and takes away from your and my ability to rely on any health care security for our future.

And any of this discussion has nothing to do with taking away from people who have “contributed all of their lives,” as one person commented above. Any change to the Medicare/SS programs, which must occur if the USA is to regain and keep its solvency, must involve future recipients and be phased in appropriately.

This took me a long time to figure out and test. I’m constantly testing it by discussion and debate and it has held true and stood the test of time.

Voluntary interactions grow if both parties are happy and terminate if either party is unhappy. There is a natural checks and balance to keep each side honest. This is the argument for the free market.
Example: Person A pays money to Restaurant Z and Z feeds A. Either party is free to demand what it wants. Z can raise their prices and demand A pay more. A is free to pay that premium if he thinks Z’s product is worth or go eat elsewhere, if not. Z is free to bar A from eating at their establishment. This ensures that Z continues to put out satisfactory food and A continues to behave properly while dining at Z.

Coercive interactions grow as long as one party has power disparity over the other. The two biggest power disparities found in the world are Parent-Child and Government-Subject.

Politician A can tell Subject Z what to do. If Z objects, A controls more guns and armies so can keep extracting higher and higher taxes from Z. It’s a lot more complicated than that however, and perhaps someday we can discuss it further. But I just throw this out there as some food for thought.

So back to the issue of helping provide medical care for those who can’t earn enough to pay for it. What did people do before EMTALA and taxation and MediCare / MediCaid?

Were there really 40 million+ sick people (I think that’s an estimate of the number of people on MediCare today) laying helpless in the gutters? The answer is NO. And that’s even adjusting for the differences in the population of the US.

There is no argument that we should help those who can’t afford to pay for it. But in a free market society, those people would make just a fraction of the population and could easily be taken care of by charity. Bear in mind the enormous infusion of vitality into the economy that would occur if all the money that is now sucked dry into the MediCare taxation pool were returned to its rightful earners. People would be better able to save for their own care. People would be better able to provide care for their parents. Don’t discount the added benefits with respect to what it would indirectly do to relationships between parents and children and between neighbor to neighbor. When people rely on community and family, then community and family will be more valued and grow healthier. When people rely on the state, well, we shall see in a few years (or sooner) what happens when the politicians of today are no longer around. There is no lasting relationship between politician and subject, unlike between parent and child and neighbor to neighbor.

Great discussion, although you won’t be making friends with many people anytime soon!

One thing though, it would strengthen your argument to have proof/links/facts backing up your assertions. This one, for instance: “But in a free market society, those people would make just a fraction of the population and could easily be taken care of by charity. ” I think you are probably right, but another person will ask how you could possibly “know” such a thing.

All in all, though, I heartily agree that entitlements sap drive which contributes to the downfall of our society. That’s the basic gist of what you are saying. Same reason why I think there should be an immediate alternative to welfare, in the form of job assistance with a tapering amount of subsidy until a person is fully employed. Of course, there will be, as you say, “a small fraction” of people who will need continuous assistance. But how great would it be to entirely eliminate the need to monetarily care for millions unnecessarily?!

There are two ways to support this assertion. One is logic and the other is evidence.

The logic part can be done by tracking what happens to the level of poverty once the “War on Poverty” was unleashed. You can also talk to people who are on assistance or know people on assistance, talk to people who work in the “poverty industry” and learn the inside scoop. Would you agree that behavior that is rewarded and subsidized tends to grow and behavior that is punished tends to shrink?

The only way to PROVE it is to take a few different geographical locations and randomize them to high tax / high entitlement vs low tax / low entitlement and follow them out for 5 years. My gut feeling is it would take less time than that to flesh out the differences, especially if people were assured that the policies were unlikely to be changed on a whim.

As for making friends (or enemies) by pursuing the truth, I have some interesting stories and observations to share regarding that, but some other time 🙂

The big question pertains to the concept of monopolies. It would be enlightening to compare what happens when you allow free individuals to engage in charity with their own money as they choose vs allowing a small mob of central-planning bureaucrats to dole out other people’s money as charity. Which results in more accountability? Which results in more corruption? Which results in more good will from the givers and the receivers?

Why should the state have a monopoly on charity along with the supposed right to force it on free people?

Charity is a wonderful thing and should be allowed to flow freely, not bound up in a monopoly.

It’s very worthwhile to discuss this with people who recognize that the status quo is not good and that we should work for positive change. But it is unwise use of time/energy discussing this with people who blindly think that the current system is not bad and should be allowed to perpetuate or grow. -_-

Back to the topic of malpractice. Alan, the argument I keep putting forth is that individual customization of the rules of dispute resolution between patient and doctor is a good thing and solves the problem. Instead of addressing this, your repeated response is “check with your attorney, because that won’t hold up in court.” I know. I know.

I’m saying that this is how it would be better. And you keep telling me, but that’s not how it is. We are on the same page. Those two statements are not mutually exclusive. In fact, they are compatible. We have a one-size-fits all system where all people are stuck with a certain set of rules. Well, technically, that set of rule differs depending on state you live in. But why should it be that way? Why should arbitrary geographical boundaries be the determining factor? Why not give people a choice without forcing them to move to a different state?

Again, I use the case of the OB’s migrating out of Florida as an example. The doctors did not like what they felt to be an unfair rule-set that was too biased in favor of plaintiff lawyers. So they did the only thing they could. Some packed up and moved somewhere friendlier. But, my argument is that it should NOT be based on geography. It should be based on a voluntary mutually-consensual agreement between doctor and patient. Of course, I’m basing my argument on the assumption that there are SOME patients who would also want a more doctor-friendly set of malpractice rules. Those patients and those doctors should be free to transact among themselves without having to move to another state. Meanwhile, those patients and those doctors who wish to be bound by a set of rules that are friendlier to tort attorneys should be free to transact among themselves as well, only under the rules that THEY want. This is the whole concept of individual freedom vs the concept that the only way to have rights is to hope that the political rulers that others elect is on your side or not.

Spell out the terms by which malpractice disputes would be resolved. Ms. Clark, think of what makes the malpractice laws different from country to country, state to state and makes one more doctor-friendly and one more lawyer-friendly. You might be able to list more than I can, but it would spell out things like caps on non-economic damages, contingency payment restrictions, loser-pays, arbitration vs jury trial, etc.

And Alan, please don’t tell me that it won’t hold up in court. I know. I know. My argument is that life would be better if we could all be free to choose our own terms and that the courts would respect that.

Alan

IVF-MD,
Thought provoking discussion. The difference between theory and practice may be on reason we’ve been, perhaps, talking past each other. You lay out components of a theoretical framework, and I raise objections on the basis of practicality. For now, we’ll consider theoretical objections based on legal principles (disclaimer: I’m a lowly practitioner in an area totally unrelated to health care, and not at all a scholar).

There are fundamental differences between tort and contract law–which info you could find anywhere. I think you are trying to superimpose a contract-based analysis to the professional/patient relationship, which is governed in part by tort. But, of course, regarding medical services, there is more involved than performing, say, an excavation on a job site, or shipping a product. Therefore, principles of tort law come into play. In your contract-based scenario, parties could conceivably bargain for specific choice of law provisions and designate a forum in their agreement. Last time I looked, though, any clause that purports to bargain away a right to sue for tort is unenforceable–likely anywhere. You counter that parties should be allowed to choose the law of a jurisdiction that is more “favorable” to providers. In theoretical musings, anything is possible. But we can’t get far without some hint of the real world intruding, even in principle.

Moreover, the kind of outcome one may seek to bargain for is more likely will vary not merely upon jurisdiction, but even upon county or municipality. It’s probably about as much as local courts as it is about the law on the books. And how happy to you think the courts are going to be trying to apply out of state law in your case?

Not to sound didactic, but there is one HUGE thing you may be overlooking. If you google the term “stare decisis,” you’ll see that our legal system is heavily reliant upon interpreting prior case decisions. I don’t see any theoretical or practical means assuming away this principle (not that doing so would be desirable, because it’s actually pretty Baysesian, if you like statistics). It is adopted from the old English common law. (See Tom Bingham’s book or Oliver Wendell Holmes on that topic).

There are many, many other issues involved, but this’ll have to suffice for now. Thanks.

Here is an specific example of how it actually does work (in the real world). My malpractice company has a policy urging me to enter into arbitration agreements. My understanding is that it changes the legal patient-doctor agreement entirely, by having both parties 100% agree to arbitration and totally bypass the standard system. Again, if this drastic departure is possible, enforceable and legal, why can’t the laws be changed to afford even more flexibility and allow only smaller or partial changes, so that it isn’t a complete all-or-none.

True, this has made no practical difference for me, in that I have never been sued nor ever come close to being served in all fifteen years of my practice. Knowing the statistics, I know that this is definitely not a sign that I’m a great doctor. It’s more that I have been extremely lucky as there are many good doctors out there who have done everything correctly, but had the misfortune of having bad outcomes that were not their fault.

What I DO know that is that these arbitration agreements have enabled my carrier to charge me lower rates thereby reducing my overhead and that has been a good thing for me and for my patients.

If somebody near a state border moves his office 10 miles, he is now able to practice under the malpractice statues of another state. So right now, doctors and patients can choose. But it would entail physically moving 10 miles. I’m still not clear on why a law can’t be legally passed to allow this without physically moving the office. Just because such laws haven’t been passed doesn’t mean that they can’t be passed, right?

Also, Alan, when you say there is no theoretical way of making these changes, I’m not really grasping why there isn’t.

Suppose a congressman or committee of congressmen wrote up a bill of new laws that follow the guidelines I described. Then the law went to the House and to the Senate and got passed. Then the president signed it. Doesn’t that become law? Were those Saturday morning Schoolhouse Rock cartoons lying to us all this time? 🙂

Alan

Actually, IVF-MD, the point was that if you want to start making assumptions, and one of those assumptions is that we hold in abeyance the framework of decisional authority which has been the basis of our legal system for centuries, I see how this whole discussion might induce mild cognitive dissonance 🙂 Here all this time I was assuming you must have been an engineering or math guy! You remind me of some family members. I really do get the mindset. Not to be too personal, but do you have close relatives, who are highly analytical, rigorously trained as engineers and math nerds, like in my background?

But as Alexander Pope once wrote, A little knowledge is a dangerous thing. Drink deep or taste not of the Pierian Spring. If you want a fancy psychological term for the bias of seeing what you want to see, I’d guess it’s “deformation professionelle”–a two-bit term for denoting that every problem can be seen through the lens of one’s professional training and experience. In your biz, you’ve got to be very meticulous and analytical, and darn it, why doesn’t everything work that way! On the other hand, if as I’m guessing, you’ve got skills in psychology, then you know just how messy the real human world is. If arbitration clauses are working for you, I’d be curious to know how those clauses are enforced in your (state) court system.

Sadly, perhaps, my youth was not spent viewing Saturday episodes of Schoolhouse Rock, so I cannot evaluate the merits (or lack thereof) of any pedagogical insights that may have been imparted thereon.. 🙂

Fair enough, haha. So then the question to you is this. Can something become a law if it is proposed as a bill, voted on and passed and then signed into law? If so, wouldn’t it be true that the solution proposed is possible if the politicians wanted it to be possible?

IVF-MD: What is the basis for your statement about “only in an emergent life-threatening situation…”?? Why do you think that is the only situation in which inequlity of bargaining power could be asserted? Or, did I miss a piece of the conversation?

Sure, perhaps you could define your interpretation of “inequity of bargaining power”. And then I’d be curious to know what is your point about how this so-called inequity affects the moral nature of the interaction.

IVF-MD: I wish I knew your name.
The most recent time I typed the word, I left out an “a”. It should be “inequality”. My point is, if there is inequality of bargaining power, fairness, joint decision-making and equality in the patient-physician relationship are lacking. Mistrust could very well be a by-product.

Carol: Are you saying that the physician in the incision issue situation told you s/he didn’t know what went wrong? If that is so, did the physician/staff then do an investigation and report back to you?

Kathleen, just saw this note.
It was never discussed. Once they told me the problem occurred as a result of too much bone being removed, I had no questions. They knew why my neck was, as they said “falling down”. (for your docs here, a severe kyphosis). The doctor who did question the x-ray and that I must be having problems never said a word to me, through my neurosurgeon. The surprise of that day, from complaint of exhaustion from holding up my head to being in the orthohopaedic surgeon’s office 20 minutes later, to being told I had to have surgery within the week, surgery that could also kill or paralyze me but if I didnt have it I would be killed or paralyzed as a result of the kyphosis made questioning out of the question. No one ever talked with me about the fact that this was the result of malpractice or suggested that I look into it, nor to my knowledge did they. Probably did come up at an M&M conference but we are not allowed to know the outcome of those..
Something went wrong in OR so month in the hospital month in rehab, supposedly in coma for a few days so the thght of why this all happened

Ms. Clark, I hear what you are saying when you say “My point is, if there is inequality of bargaining power, fairness, joint decision-making and equality in the patient-physician relationship are lacking. Mistrust could very well be a by-product.” I agree that in almost all major transactions, there is inequality of information. Right? When I go to a new restaurant, I don’t know what’s good there and if I ask them, I don’t know that they’ll recommend to me not what’s good, but what they’re trying to get rid off. But just because one party is more up on things than the other, does that mean that there can be no voluntary agreement between the two of them? Then, how would anything get done in this country? Right? So that certainly does not argue against the benefit of allowing individuals the freedom to name their own terms of dispute resolution.

I greatly appreciate the lively discussion we’ve had here. I think those who are open to thinking about the ideas I suggest will ponder them respectfully and either sort of agree or sort of disagree. That’s all I ask. Those who are close minded or those for whom I’ve failed to communicate clearly will be glad when I stop writing. 🙂 So I’ll make one last summary of my viewpoint and head on out.

– There are a set of laws that dictate the specifics of how malpractice suits are resolved. The laws in one state often differ from the laws in another state, but they both exist. Therefore, we can conclude that within our current legal system, either set are subjectively judged reasonable. Correct?
– Some states have laws that are a more favorable to the physician. Some have laws that are more favorable to plaintiff attorney. Correct?
– So currently, the patient and physician have no choice as to which sets of laws govern their interaction with each other EXCEPT by moving to a different state.
– So my suggestion is for lawmakers to allow human beings the free choice to select which sets of guidelines they want for their specific interaction with their doctor. People ALREADY have that choice now. But it involves geographically moving. That’s highly inefficient.
– Why not allow people the right to choose while not forcing them to move? It is a good idea and just because that’s not how it has been done traditionally ( I know. I know), isn’t it rational that it could be beneficial and it could be feasible?
– After all, lawmakers have the power to make this happen within the confines of our Constitution.

OK. I’m open to hearing any specific rebuttals to any of the above points, but other than that, have a great week and I hope you all happily take care of your patients, cherish your loved ones and have fulfilling lives.

Patient and physican ALWAYS haveteh choice not to litigate at all, in which case it doesn’t matter what state they live in. Also, you mention that some states are more favorble to physicians and some are more favorable to “plaintiffs’ attorneys”. I assume you mean more favorable to patients/plaintiffs?

Alan

IVF-MD (Terence),
I’ve enjoyed the stimulating give and take on this thread. As I’ve come to understand your proposal, it relies on contract law. Where the action is now is in so-called tort reform, which, as you hint I think, is happening at the state legislative level. I don’t like choice of law provisions in consumer contracts because the parties don’t have anything close to comparable bargaining strength. The choice is made by the drafter of the contract, and it’s not freely negotiated–it’s really a Hobson’s choice, a take it or leave it proposition.

Check out the latest edition of The Economist (page 30 to be precise) on the steps some states are taking toward tort reform. I have a sense this is where the discussion was headed all along. The whole choice of law in patient contracts seems somewhat baroque, and perhaps a bit beside the point. It’s tort law that’s in play. The case of legislation of “loser pays” pending in TX will be interesting to follow. Cheers and best wishes.

Power corrupts, absolute power corrupts absolutely! Whether they admit it or not, most doctors hold ‘absolute power’ over their patients . Because of their special training and respected/trusted status in society, doctors often unknowingly intimidate their patients.

But physicians, like all human, make ‘human mistakes’. It’s important to have a ‘check-and-balance’ system so that all parties will act responsibly.

I would not have had the capacity to write comments like this had my former boss not helped with a special contract to get me the best neurosurgeon in town. We never did sue my family doctors who had ignored my symptoms/complaints/pleas. They had either casually advised me to ‘move’ in order to solve my ‘allergy’ problems, or threatened me with a psychiatric referral when they couldn’t figure out why I was suffering terrible headaches. They had encouraged me to find ‘another’ doctor because they did not think there’s anything wrong with me physically. When my neurologist advised us ‘only this neurosurgeon’ can do the surgery, my then family doctor insisted other ‘in-network’ neurosurgeons were “just as good…” He’s either telling a lie, or too ignorant to be making the right call.

In a couple of weeks, I’ll be celebrating my 21st anniversary suviving a 23-hour surgery resecting a huge, life-long, and life-threatening brain tumor. I’d had GKRS 10 years ago, and there’s a possibility that I may need another radiosurgery soon.

Both my former family doctors are now practising in the ‘big’ hospital where I had had my surgery. I’m sure they’ve been enjoying the freedom to refer their patients to any specialist without worrying about ‘quotas’ and bonus. The hospital/clinic is a physician-founded non-profit and runs its own insurance company. My current family doctor also has given me a referral to see a counselor when I demanded for an MRI a year ago. He had no idea about my brain tumor history because I’ve been mostly under the care of my breast cancer oncologist the past 8 years.

Neither of them had initiated the genetic testing and the needed prophylactic hyster/oo for me – they did not know the medical history of any of my family members even though I always fill out all the details on the questionaire.

Perhaps (just my wild imagination) our billing system should use each patient (instead of each appointment) as a unit. Each doctor/team will be responsible for the total care of certain number of patients. They will be getting bonus for keeping the patients healthy. They will be judged by how many lives, instead of how many procedures, they have saved.

Medical malpractice patients may pay 50% in lawyers fees if they win but they won’t pay a dime if they lose. This is the way our legal system weeds out the non-meritorious claims since lawyers won’t accept contingency cases they think they can’t win for obvious reasons.